Perhaps if you are wondering whether or not it is worth writing a Will in Spain it would help to know that if you haven’t done so already, you run the risk of your heirs losing their rights to your assets if they do not claim their inheritance in time or if your Last Will and Testament does not appear in the Central Registry of Wills in Madrid.
Under Article 9.8 of the Spanish Civil code: Inheritance through death will be regulated by the National law of the deceased person in question at the time of their death, whatever the nature of their possessions and whatever country they may be in. The arrangements made in the Will along with the testator’s wishes and in accordance with the National law of the testator at the time of the drawing up of the Will, will remain valid, even if another law of succession exists.
When a foreign property owner dies, even if he holds an official residence permit, the disposal of his assets will be governed by his own National law not Spanish law provided he has made a Will specifying to that effect. The theory is that the Spanish law says that the English laws will apply and the English Law says that the Spanish laws will apply because of where the property is. The fact of the matter is that as long as the person’s own National law is ruled by the principle of “free disposition of property by testament”, then the Spanish Registrar will accept this. The only requirement enforced by Spain is the payment of Spanish Inheritance Tax which can be legally reduced depending on your personal situation and choice, as well as the correct legal advice.
It is important that when Wills are drawn up that they are done so with care, paying particular attention to detail.
Your Will can be Open, Secret, Holographic or even Verbal. The most commonly used version is the Open Will, which is drawn up by your lawyer in double columns in both Spanish and your National language, which are read out loud and then signed by the Notary, usually by your lawyer or the translator and yourself. It is then automatically registered in the Central Registry as mentioned above.
Whichever you choose there are aspects that deserve careful consideration such as the possibility of an heir contesting your Last Will and Testament using the Spanish law to their advantage, which declares that assets are to be divided equally amongst children. Unfortunate situations can be avoided by following professional legal advice.